UPDATE: Fed. App. Ct. Zaps Cartoonist's Heirs in Marvel Copyright Suit

(Photo credit: Wikipedia)

In the 57-page opinion this week in Marvel Entertainment, Inc. v. Kirby (Case No. 11-3333) by Judge Robert D. Sack, the United States Court of Appeals for the Second Circuit sided with Walt Disney Co.-owned Marvel Entertainment in a copyright termination rights suit involving the heirs of renowned cartoonist Jack Kirby.

The federal appeals court upheld the decision of United States District Court for the Southern District of New York Judge Colleen McMahon, who in 2011 granted summary judgment to Marvel (see "TUOL" post 8/1/11), finding that the company held exclusive ownership of copyrights on characters including Iron Man, Spiderman, The Fantastic Four and The Incredible Hulk, and that Kirby's comic book artistry was a work for hire.

The case involved 262 titles between the years 1958-1963. The Second Circuit agreed with the trial court that Barbara and Susan Kirby did not have copyright termination rights under 17 U.S.C. sec. 304(c)(2). The three-member appellate panel concluded the trial court lacked personal jurisdiction over the late cartoonist's other two children, Lisa and Neal Kirby, vacating the judgment against them. "The judgment here will declare the existence vel non of Barbara and Susan's termination rights," Judge Sack wrote, "and whatever the practical effect of this declaration, it can do no more or no less."

The disputed works were created at Marvel's instance and expense, and the heirs failed to prove the existence of any agreement to the contrary, the court concluded.

Price Tag for Hulu Continues to Rise

Image via CrunchBase

El Segundo, Calif.-based pay-TV service DirecTV reportedly is one of three suitors waving more than $1 billion at the owners of Hulu, LLC in hopes of wresting away the on-demand streaming video Web site, according to a Bloomberg News report.

Hulu's owners, News Corp., Comcast and Walt Disney Co., may be tempted by the sweetened pot to unload Hulu after their previous IPO and auction efforts came up short. Hulu airs webisodes, trailers, clips and other advertising-bolstered content from movie studios and cable and commercial networks.

The Bloomberg News article noted the other two seven-figure bidders besides DirecTV, the nation's second-largest pay-tv company, have not yet been identified.  Other companies who have tendered offers to acquire Hulu include Time Warner Cable, Inc., Yahoo! Inc. and private equity firm KKR & Co.

Disney to Lucas: 'May the Force & $4b Be With You'

Image via CrunchBase

George Lucas, the producer/director behind the Star Wars and Indiana Jones film series and American Graffiti, is $4.05 billion richer following The Walt Disney Co.'s acquisition of San Francisco-based Lucasfilm, the New York Times reported yesterday.

Lucas, 68, the beneficiary of the cash and stock deal, plans to step down from the daily operation of his company. Acquisition of the Lucas Empire brings to Disney a live-action production entity, the Industrial Light & Magic special effects business, Skywalker Sound audio company and a line of consumer products. Disney paid $4 billion for Marvel Entertainment in 2009 and $7.4 billion for Pixar Entertainment in 2006, as it continues to devour superhero and animated film outlets like a Death Star.

Plans are underway, according to Disney CEO Robert A. Iger, to resume the Star Wars film series, on which Lucas will consult, with the next film slated for 2015.  Star Wars Episode III: Revenge of the Sith (2005) is the most recent film in the blockbuster series.

Although one can go to the well once too often, "TUOL" is looking forward to the 2015 Star Wars film in which Darth Vadar reveals to Donald Duck: "Duck, I am your feather."

UPDATE: Cartoonist's Heirs Can Only Marvel at Disney Copyright Suit Win

Image via Wikipedia

Comic book heroes may reign at the box office, but in court, corporate ownership trumps the cartoonist every time.

U.S. District Court for the Southern District of New York Judge Colleen McMahon last week ruled that Walt Disney Co.-owned Marvel Entertainment, Inc., exclusively owns the copyrights to Iron Man, The Incredible Hulk and a stable of superheroes, derailing the case brought by the heirs of Jack Kirby, the cartoonist who helped create the characters, Skepsi-News.com reports (see "TUOL" post 3/18/10).

Judge McMahon held that Kirby inked The Fantastic Four, Spiderman and other comic book creations as works made for hire for then-Marvel domo Stan Lee, making the company the author pursuant to the 1909 U.S. Copyright Act (P.L. 60-349), which still governs works created before 1976, but otherwise has been superseded by the Copyright Act of 1976 (17 U.S.C. sec. 101 et seq.).

Disney paid $4 billion in 2009 to acquire Marvel Worldwide Inc.  Kirby's children are expected to appeal the decision.

Fla. Appeals Court: ESPN Wins Don King Libel Suit by a TKO

Image via Wikipedia

In Don King Productions, Inc. v. The Walt Disney Co. et al. (Case No. 4D-08-3704), Judge Dorian Damoorgian of the District Court of Appeal of Florida, 4th District, last week upheld the trial court's 2005 dismissal of boxing impresario Don King's defamation suit against ESPN, Inc., ESPN Productions, Inc., ESPN Classic, Inc. and parent company, The Walt Disney Co., on the grounds that King failed to prove the alleged defamatory statements were false or made by the defendants with actual malice.

ESPN's Sports Century devoted a 2004 episode to the life and career of  the boxing promoter. King alleged that the program contained false statements that harmed his reputation, including allegations that a charitable boxing exhibition featuring Muhammed Ali arranged by King cheated a Cleveland hospital out of ticket proceeds, that King purportedly threatened the life of the author of a book about him that was critical, and that he owed money to a boxer in his stable of fighters.

Judge Damoogian's decision  noted that to sustain his defamation claim as a public figure, King had to prove that the defendants made the statements at issue with actual malice, that is, knowledge that they were false or with reckless disregard whether they were true or false.  A mere failure to investigate the statements at issue before the defendants aired them, without more, does not rise to the level of actual malice, according to the appeals court.

The 79-year-old boxing impresario who promoted Ali's "Rumble in the Jungle" and "Thrilla in Manila" fights can add his own "Horror in Florida" hair-raising litigation experience to his list of achievements.

A Marvel-ous Copyright Suit

Image by Getty Images via Daylife

Seven months after The Walt Disney Co. dropped $4 billion to acquire Marvel Entertainment (see "TUOL" post 9/1/09), the heirs of Marvel comics legend Jack Kirby have sued to terminate copyrights and reap the profits of Marvel's superhero creations.

The suit in the U.S. District Court for the Central District of California, Lisa R. Kirby et al. v. Marvel Entertainment Inc. et al. (Case No. 8:10-cv-00289-CJC-AN), seeks to terminate copyrights and cash-in on profits from comics icons such as The Incredible Hulk, X-Men, Spider-Man and Iron Man. During the '50s and '60s, Kirby, who died in 1994, worked alongside Stan Lee to build Marvel's superhero stable.

Marvel sued in January 2010, claiming the various superheroes who emerged from Marvel's lab were "works made for hire" owned by Marvel, the "author" pursuant to the 1909 U.S. Copyright Act (P.L. 60-349), which still governs works created before 1976, but otherwise has been superseded by the Copyright Act of 1976 (17 U.S.C. sec. 101 et seq.). The suit initiated by Kirby's children asks for declaratory relief, including the termination of copyrights, which if allowed, could translate into millions of dollars for the Kirby brood.

The Incredibly Shrinking ABC News

Image via Wikipedia

Faced with declining ratings and shriveling ad revenues, ABC News plans a major shake-up that could reduce its news division by 20 percent.

The Walt Disney Co.-owned ABC is hopeful that somewhere between 300 to 400 of the roughly 1,400  news division staffers will accept voluntary buyouts, but in any case, layoffs will help the network of Roone Arledge and Peter Jennings attain that goal.  As part of the changeover, the weekday and weekend staffs of World News and Good Morning America will be combined.  GMA, ABC's principal revenue provider, has experienced a 10 percent dropoff in viewers among advertiser demographic-desirable 25- to 54-year-old viewers, so George Stephanopolous better accelerate his kitchen baking and insipid banter skills.

Once the dust has settled, journalists who remain standing at ABC will be expected to go "digital," by recording, editing and producing their own stories. The anticipated staff reduction is the largest since Disney acquired ABC in 2001 when 125 news division jobs were lost. Misery loves company as earlier this month, CBS News turned off the lights at its Moscow, London and Los Angeles bureaus and slashed nearly 100 jobs (see "TUOL" post 2/1/10).

ABC News has gone from being "Rooned" to being ruined.

Disney Breaks Miramax: 7 Years of Bad Luck to Follow?

Image by tchuntfr via Flickr

The Walt Disney Co. has turned out the lights on its Burbank, Calif.-based subsidiary Miramax Films, eliminating 80 jobs and bringing an end to the one-time indie film hitmaker.

Disney bought Miramax, which was founded in 1979 by Harvey & Bob Weinstein, in 1993, but has reduced the studio's film output in recent years.  At its height, Miramax produced a spate of  critically acclaimed movies, including Chicago, Shakespeare in Love, Clerks, The English Patient, Pulp Fiction, sex, lies & videotape, and The Crying Game.

According to a story in the United Kingdom-based The Guardian, six studio movies are in the can and ready for release.  Get ready for Pirates of the Caribbean: the Weinsteins Walk the Plank.

Oh Pooh!: Epic Disney/Slesinger Lawsuit Ends With a Winnie for Disney

Image via Wikipedia

If only the Walt Disney Co. and the Slesinger family got along as well as Winnie the Pooh, Tigger, Piglet, Eeyore and the rest of the Hundred Acre Wood denizens.

Last week, the titanic 18-year struggle between Stephen Slesinger, Inc. and Disney came to an end in the Los Angeles courtroom of the U.S. District Court for the Central District of California where Judge Florence-Marie Cooper allowed Disney's summary judgment motion to dismiss Slesinger's outstanding trademark infringement, copyright infringement, trade dress, and violation of Calif. Bus. and Prof. Code sec.17200 claims concerning the former Edward Bear a/k/a Winnie the Pooh (Claire Milne, by and through Michael Joseph Coyne, Receiver & Disney Enterprises, Inc. v. Stephen Slesinger, Inc., Case No. 2:02-cv-08508).

The Slesinger brood, which acquired the merchandising rights to Pooh and the rest of author  A.A. Milne's  characters in 1930, first sued Disney in 1991. Disney has registered at least 15  Pooh-related trademarks in the U.S and has registered 59 works featuring Pooh characters with the U.S. Copyright Office.  Slesinger's widow transferred Pooh rights to Disney in 1961 in exchange for royalties.

Over the years, the Slesinger family claimed Disney shortchanged them on royalties, first claiming they were owed $700 million, and in a subsequent suit, alleged $2 billion in damages and royalties were due them. 

Judge Cooper found the transfer of rights by Slesinger to Disney to be complete, thereby foreclosing any trademark or copyright infringement assertions.  The end result of the long-time courtroom fracas is that Disney and Slesinger will continue to do business, with the latter receiving payment of royalties from the former.

Silly old litigants.

Disney Eyes Indian Comics Publisher of Hindu Myths

Image via CrunchBase

Now that Marvel Entertainment has joined its stable, The Walt Disney Co. has set its sights on a start-up comics publisher in India that specializes in stories drawn from Hindu Mythology.

The Times of London reports that Disney is in talks with Vimanika Comics, which publishes in English and Hindi.

Can't wait for the theme park in Calcutta featuring "Jiminy Krishna"  and piping in "When You Vishnu Upon a Star."

Marvel Fans 'Thor' About Disney Takeover

Image by Getty Images via Daylife

Bambi, Dumbo, Wolverine? Snow White, Sleeping Beauty, Incredible Hulk?

Media observers are still coming to grips with The Walt Disney Co.'s decision to pony up $4 billion to acquire Marvel Entertainment and gauging the impact the megadeal is expected to have on Hollywood, theme parks, video games, comic books and the like.  Disney stock dropped 3 percent to roughly $26 a share, while Marvel stock soared  25 percent to $48.37 a share yesterday on the announcement of the purchase. The stock and cash deal reportedly was valued at $50 a share, a 29 percent premium.

Marvel is the premier comics publisher, holding both a retail dollar share and unit market share edge over rival DC Comics. By acquiring Marvel, Disney is now allied with Sony Pictures Entertainment (Spider-Man), 20th Century Fox (X-Men) and Paramount Pictures (Iron Man), which continue to churn out and distribute films featuring characters from the Marvel stable. The transaction is also a boon for Disney's theme parks and cable channels.

The respective parents of Mickey Mouse and Captain America have not always seen eye to eye. In 2004, Marvel sued Disney  in Los Angeles County Superior Court, alleging $16 million in damages stemming from Disney's takeover of the Fox Family Channel and conversion to ABC Family. When the acquisition  occurred, Fox Family Channel was airing an animated series starring Marvel characters, prompting Marvel to argue that Fox could not transfer the copyright license of the Marvel creations to Disney.

That was then. Today, entertainment honchos in both camps are singing: "It's a Small (but) Marvel-ous World After All." Marvel's mostly male fan base, however, is already having nightmares about an Incredible Hulk & Hannah Montana music video.